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Thursday, September 15, 2016

Legal Praxis in a Political World : Re-Reading Kizhvenmani, Babri-Masjid and Bhanwari Devi Judgements

S.V. Narayanan

All
social institutions that we created and experiencing operate within a
particular political environment. The values and ethics associated with these
institutions are to a larger extent being shaped and disciplined by the larger
socio-economic context in which they function. This structural relation and its
understanding will help us in critically evaluating the purpose and functioning
of these institutions. Law, being a socio-legal institution, which is identified
as objective and scientific, also operates within this larger political
context, carrying and reflecting its values and influences. Indian legal system
operates within the class and caste ridden society, which influences its
interpretation and judgement, by reinforcing the societal values over and above
the objectivity and scientific nature of legal studies. This paper will
critically evaluate the important interpretations made in three important legal
cases in India, which is significant in reflecting our regressive social values
in the higher legal institutions; The Kizhvenmani massacre in 1968 in Tamilnadu
where 44 dalits were burned alive, the Ayodhya judgement in 1986 which opened
the gates of communal politics at the national level and Bhanwari Devi case judgement in 1995 which combined
casteism and patriarchy in its interpretations. The underlying assumptions
behind the judgement and the social values associated with them will be
critically analysed rather than dwelling deep into the judgement and its legal
merits.

Law and
Politics

The
legal institution's rules and decisions cannot be comprehended convincingly, if
we look it independently without locating it in a larger social context. Since
law is embedded within the society and it reflects and influences the culture
in which it operates, the legal institutional functioning can be understood
properly by situating it within society and its nature (Mather, 2008). The societal values and understanding, influences
the decisions of legal institutions, as the individual decision makers or
judges are part of this societal conglomeration. According to Cerar (2009), the
law could be a goal, a means or an obstacle in relation to politics. The
politics can identify certain legal values as its goal, the law could be used
as means for achieving certain political interests or it could be identified as
an obstacle while achieving certain political goals. Thus, the legal
institutions and its values are strongly intertwined with the political context
in which it operates.

Even
though Marx and Engels did not write in detail about the place and function of
law and its institutions, their analysis of 1834 Poor Law Amendment and Corn
Laws, has given certain direction for the Marxian politics to develop the
concept further. They considered law, similar to politics (Liberal Democracy), as
a tool which was used to cover up the capitalist exploitation. Law also
transforms itself according to the changes in the economic sphere to strengthen
the exploitative apparatus within the capitalist political economy (Stone,
1985). Thus, the legal institutions are consistent in not only protecting
property rights, but also in protecting the property owners, who forms the
basic foundation of capitalism.

Within
the study of the relationship between law and society, the decision-making
process in courts is one of the important area which tries to understand the
socio-economic structure and its influence in the judicial process and its
outcome. Class, race, caste, gender and other forms of discrimination gets
reflected in the judicial judgements, which is nothing but the reflection of
our societal values and practices. The economic structure, cultural values and
other forms of societal influences forms the context in which the court
judgements needs to understood (Mather, 2008).
Thus, from the above discussion we understand that the economic structure and
shared cultural values in a society does have an strong influence over the
judicial decisions in the court of law. From this understanding, we will try to
look critically, how such societal condition and values have influenced the
judgement in Kizhvenmani, Ayodhya and Bhanwari Devi case
judgements. We will try to glean the important observations of the
judges in these cases, rather than complete analysis of the judgement, to
understand the values that influenced the decision-making process.

Politicized
Legal Interpretations

In this
section, we will critically look at the three important judgements, in
independent India,
to understand its rationale and context.

Kizhvenmani
Case

Kizhvenmani,
a remote village of erstwhile Thanjavur in Tamilnadu came to highlight in 1968,
when 44 dalit agricultural labourers ( Mostly women and their children) were
burnt alive, by landlords, for
protesting and demanding higher wages. Thanjavur, was a fertile region in
1960's with generous rice and paddy production making it agriculturally rich
area. But the land ownership was dominated by few rich landlords, who
controlled and oppressed the majority of lower caste landless agricultural
labourers. According to EPW (1973; 927),

" In
1961, 3.8 per cent of the cultivating households, owning more than 15 acres
each, held 25.88 per cent of the cultivated area, while 76 per cent, owning up
to 5 acres each, held only 37 per cent of the area. Thanjavur also has the
highest proportion of landless labourers: for every 10 cultivators, there were
9 labourers in 1961. The 1971 Census found 41 per cent of the rural population
to be landless labour while the state average was 29 per cent. Thanjavur also
has the highest percent-age of Harijans (Dalits) among the
landless. Acombination of these factors had made Thanjavur a classic
setting for feudal oppression. It was here that feudal serfdom had fully
developed. Apannaiyal (attached labourer) pledged the services of
himself, his wife and their children to be born to the landlord until the loan,
usually taken for marriage, of about Rs 50 was fully recovered. Considering the
pittance of a wage that he received, the recovery of the loan not unusually
took longer than the life of the pannaiyal".

The
green revolution, in effect had increased the agricultural production and the
prices during 1960's, which made the dalit labourers, organised under communist
party, to demand higher wages from the landlord (Gough, 1976). The dalit
labourers demand of half a litre more of rice as wages has been stoutly
resisted by Paddy Producers Association ( PPA) under the leadership of
Mr.Gopalakrishna Naidu, the president of PPA. These landlords brought labourers
from outside the village, which infuriated the local labourers and culminated
into a conflict where one Mr.Pakkirisamy Pillai, from landlord side, was killed
in the clash. In response to this, the landlords organised themselves and
attacked the Kizhvenmani village, shooting the labourers and finally burning
down 44 dalits (Viswanathan, 2006). But, the killing of Mr.Pakkirisamy was only
a trigger, the real reason lies behind the class and caste based accumulated
anger, where the landlords were not able to digest the dalit labourers uprising
against them and questioning their authority, which was unassailable for many
centuries due to caste and class oppression. This is very apparent in the conversation
by a landlord with the EPW(1973; 926 - 927) author,

"Things used to be
very peaceful here someyears
ago. The labourers were very hard-working and respectful. But now . . . the
fellow who used to stand in the backyard of my house to talk to me comes
straight to the verandah wearing slippers and all. At 5.30 pm sharp he says,
'Our leader is speaking today at a public meeting. I have to go'. His leader
holds a meeting right next door to me and parades the streets with the red
flag. These fellows have become lazy and arrogant, thanks to the Communists.
They have no fear in them anymore."

The common perception
that prevailed in this period reflects the century old caste and class based
discipline and behaviour, which was the main basis for exploiting the labour of
lower-caste people. The landlords should be treated with respect, they cannot
be questioned, they cannot be wrong, their words are final and whoever opposes
these rules, the landlords have the inherent right to punish the violators. The
caste position also gave the landlords complete freedom to punish the
perpetuators, where the Manusmriti, the Hindu religious code, gives
punishment based on the caste position, favouring the upper caste. These
perception were reflected in the court judgement, where all the landlords, who
burnt and killed 44 dalit labourers were let free, but the dalit labourers, who
was indicted in killing Mr.Pakkirisamy was punished.

In
Mr.Pakkirisamy murder case, out of the eight accused, one was given life
sentence and others were given rigorous imprisonment, where the Nagai sessions
court agreed that the attack against him was not a planned attack. But, the
sessions court considered the killing of 44 dalit labourers as a preconceived
and deliberate attack and sentenced the accused to 10 years of rigorous
imprisonment. When both of them went to Madras High Court, the punishment for
the labourers were upheld and the punishment for the landlords were quashed (Kanagasabai, 2014). More than the judgment,
the observations of the Madras High Court judges in this case regarding the
landlords and their involvement in killing of 44 dalit labourers was more
shocking and reflecting the common perception of people in a caste and class
divided society. The judgement was delivered by Mr.Venkataraman and
Mr.Maharajan on April 6th 1973, in the criminal appeal no: 1208/1970 and 593/1971. The judges observed in their
ruling,

“…
there was something astonishing about the fact that all the 23 persons
implicated in the case should be mirasdars. Most of them were rich men, owning
vast extent of lands and Gopala Krishna Naidu
possessed a car. However much they might have been eager to wreak vengeance on
the kisans, it was difficult to believe that they would walk bodily to the
scene and set fire to the houses, unaided by any of their servants. They were
more likely to play safe, unlike desperate hungry labourers. One would rather
expect that the mirasdars, keeping themselves in the background would, send
their servants to commit the several offences which according to the
prosecution the mirasdars personally committed… The evidence did not enable
their lordships to identify and punish the guilty”(Balu,
2009; 435).

Further,
the court held that the people who kept fire for the house are unaware that 44
people were inside and they had no intension to kill them. Are they so innocent
to not hear scream or lock a hut which is empty without any human being inside?
Based on certain frivolous interpretation of the evidences, the judges have
decided that the workers and communist leaders conspired to trap Gopala Krishna
Naidu in the case. The Supreme court also upheld this decision to set free the
landlords. The judges observation clearly accepted the caste position and
economic status of the landlords, and made this as basis to clear them of any
criminal intension. The land and cars owned by the landlords not only made them
superior, but also excluded them from involving in the cheap and direct act of
killing labourers. The judgement implies that only desperate hungry labourer (
lower caste) are capable of doing such stupid things and landlords being
economically wealthy ( upper caste) will not even enter the lower caste
dwellings and they are smart enough to play safe by using their workers to do
such acts. These observations clearly reflect the caste and class perception of
judges in deciding a case, whereas these observations were not uniquely the
societal understanding of judges, but these were the common perception, even
among the working class and lower caste population during this period.

Babri
Masjid - Ayodhya Case

The Ramjanmabhoomi - Babri
Masjid controversy is still one of the major communal conflict in India, where a
site in Ayodhya was claimed by Muslims as a Mosque (Babri Masjid) and Hindus
claim it to be birthplace of Lord Ram. Even though, the issue is there from the
time before independence, it mainly got flared up and became an national issue
after 1986 district court judgement, which opened the gates for Hindus to
conduct prayers. This judgement triggered the communal issue to develop as one
the biggest communal conflict between Hindus and Muslims in independent India. This
became a great challenge to the secular fabric of India, which indeed has led to
nation-wide communal conflicts between Hindus and Muslims. A major political
reshaping in India
happened due to this conflict in post-independence period. The Bharatiya Janata
Party (BJP), which was at the fringes of electoral politics was able to make
use of this communal conflict to mobilise and also polarise Hindu votes in its
favour. So, more than religious issue, it has to be seen as a political issue,
which created space for the right-wing party in the parliamentary politics.

Rather
than looking in detail, the Ayodhya controversy, we will look into the 1986
judgement by Justice K M Pandey, who gave judgement opening the gates for
worshipping by Hindus. On December 22nd, 1949, the Hindu right wing miscreants
secretly planted the Ram idol inside Babri Masjid, to garner further support
from the radical Hindus to claim the Masjid site for RamTemple.
Both Hindu and Muslim sides filed civil suits for the ownership of the disputed
plot. Till 22nd December 1949, Muslims were offering Namaz in Babri Masjid
site, and the government locked the gates after that as the matter was
sub-judice (Puniyani, 2010). Even though
the gates were locked, the idol of Ram, which was installed illegally, was not
removed and restricted access to conduct pooja was given Hindus. For the next
35 years, Hindus were having access to the disputed site and Muslims were not
allowed. At this period, the demand of the Hindu right wing forces was to open
the locks of the gate for unlimited access for Hindus to worship at the
disputed site.

The
1986 judgment, which opened the gates of communal fighting in India, has
finally conceded to the demands of Hindu right wing forces, which not only
changed the political landscape, but also taken numerous Hindu and Muslim
innocent lives due to communal conflict. The district judge K M Pandey, in his
judgement,

"…it is
not necessary to keep the locks at the gates for the purpose of maintaining law
and order or the safety of the idols. This appears to be an unnecessary
irritant to the applicant and other members of the community. There does not
appear to be any necessity to create an artificial barrier between the idol and
the devotees. It appears that the opposite parties have remained a prisoner of
indecision for the last 35 years. Somebody in his wisdom thought fit to put
locks at the gates at any point of time and nobody since then has seen whether
there is any necessity to retain locks or not"(Puniyani, 2010 ; 43-44).

Further he
observed:

"after
having heard the parties it is clear that the members of the other community,
namely the Muslims, are not going to be affected by any stretch of imagination
if the locks of the gates were opened and the idols inside the premises are
allowed to be seen and worshipped by the pilgrims and devotees. It is
undisputed that the premises are presently in the court's possession and that
for the last 35 years Hindus have had an unrestricted right or worship as a
result of the court's order of 1950 and 1951. If the Hindus are offering
prayers and worshipping the idols, though in a restricted way for the last 35
years, then the heavens are not going to fall if the locks of the gates are
removed. The district magistrate has stated before me today that the members of
the Muslim community are not allowed to offer any prayers at the disputed site.
They are not allowed to go there. … If this is the state of affairs then there
is no occasion for any law and order problem arising as a result of the removal
of the locks. It is absolutely an affair inside the premises. There is no
justification for retaining locks after the positive statements of the district
magistrate and the SSP Faizabad that the law and order situation can be very
well kept under control by other means as well and for that end it is not
necessary to keep the locks on these gates"(Puniyani, 2010 ; 44).

This
opening of the locks for unrestricted access to Ram idol inside the Babri
Masjid, has not only strengthened the right wing communal forces , but also
shifted their demand towards having the ownership right for the disputed site
for building Ram temple and destroying the Babri Masjid structure, which is
there for more than 400 years. The district judge K M Pandey's decision was
criticised by many ( even the 2010 Allahabad High Court judgement criticised
it), for his haste in opening the locks, which had a disastrous impact on the
communal situation and the minorities in the country. But, later when K M
Pandey wrote his memoir "Voice of Conscience", published in
1996, he gave a reason for his decision on that day as

" On the
date of the order when orders for opening locks was passed, a Black Monkey was
sitting for the whole day on the roof of the Court Room, in which hearing was
going on, holding the flag-post. Thousands of people of Faizabad and Ayodhya
who were present to hear the final orders of the Court had offered him
ground-nuts, various fruit. Strangely the said Monkey did not touch any of the
offerings and left the place when the final order was passed at 4.40 pm. The
District Magistrate and SSP escorted me to my bungalow. The said Monkey was
present in the verandah of my bungalow. I was surprised to see him. I just
saluted him treating him to be some Divine Power"(Pandey, 1996; 215).

The
judge decision to open the locks was not only in haste, but also firmly rooted
in his Hindu religious belief, which was politically constructed to be in
opposition to Muslims due to the Ayodhya- Babri Masjid conflict. The Judge in
this case failed to uphold objective and scientific way of analysing the
situation and being persuaded by his own belief system to come out with such a
judgement, which impacted the peaceful communal landscape of India.
Initially, by installing the idol inside the Mosque in 1949, the Muslims were
denied the right to worship and finally by this decision, the Babri Masjid was
made as de facto temple. Similar to Kizhvenmani case, where the judges were influenced by narrow understanding of class and caste, set
free the criminal Mr.Gopala Krishna Naidu, who burned and killed 44 Dalits for
demanding higher wages, here the judge being influenced by his narrow religious
understanding and superstition had deepened the communal divide within Indian
society by favouring religious Hindu section of the population, ignoring
deliberately, the fair and objective justice.

Bhanwari Devi case

Bhanwari Devi was a Kumhar ( Dalit) women, around
40 years old, who was brutally gang raped by upper caste Gujjar men in her
village Bhateri, 55 km from Jaipur, Rajasthan in 1992. She was trained as
Sathin ( Grassroot Worker) to work in Women Development Programme of Rajasthan
government. Being a grassroot worker, she campaigned on many issues, including
a attempted rape case with the support of people from village. But when she
took up the issue of child marriage, which was prevalent in her society, she
was slowly alienated from the people. She carried forward the Rajasthan state
governments programme to end the child marriage. The Gujjar caste, which was
dominant in her village, was not happy with her campaign. The main contention
started when she tried to convince Ram Charan Gujjar, to stop marrying his one
year old girl child. Even though the marriage of that one year old girl was
stopped by the police initially, it was held the next day. After this incident,
the Gujjars started targeting Bhanwari Devi, accusing her of informing police and
interrupting their cultural practices. This targeting has forced her husband,
who was a rickshaw puller in Jaipur, to come back and stay with her to give her
protection. In this hostile environment, on 22nd September 1992, at 6 PM in
evening, Bhanwari Devi and her husband were attacked by five Gujjar men. They
also brutally gang raped her. The husband and wife, after much difficulty,
filed a case against the criminals. But, the police, medical doctors and the
village community were not cooperating at any stage, which led to delay of more
than 52 hours in conducting medical examination (Mathur,
1992).

The rapist tried to give her compensation for
not going ahead with the legal case against them. But, she bravely filed case
against them and fought in the court of law. The district sessions court
judgement in November 1995 shocked the conscience of all who fought for
Bhanwari Devi to get justice. The Judge said that an upper caste man could not
have raped a dalit women. The other main observations of the court are

" a man could not possibly have participated in a gang rape in the
presence of his nephew; Bhanwari Devi could be lying that she was gang raped as
her medical examination happened a full 52 hours after the said event; and that
her husband couldn’t possibly have watched passively as his wife was being gang
raped — after all, had he not taken marriage vows which bound him to protect
her?"(Vij, 2007)

The case went for appeal, but the evidences were
fabricated and still they are waiting for the justice. The heights of casteism
and patriarchy was displayed, when after the district sessions court judgement,
the state BJP MLA organised a rally in support of the five rapist (Virani, 2001). But this
case and its judgement led to large public outcry and a many more public
interest litigation against the sexual harassment of women in workplace.
Finally, the Supreme Court issued Vishaka guidelines to be followed by all public and private
organisations and institutions to stop sexual harassment of women at workplace.
This case judgement shows the patriarchal attitude, which is prevalent in our
society, also influenced the judgment where a women complaining against
dominant men was not an acceptable behaviour. The casteism was also displayed
where the judge asks how a upper caste men can rape a lower caste women? Such
common perceptions that were prevailing in our society
gets reflected in the judgment, ignoring the objective and scientific way of
bringing justice for the oppressed sections of our society.

Observations

As we
saw in the beginning, even though the domain of law and its institutional
structure seems to be independent and objective in bringing justice to
everyone, it is still being impacted by the societal attitude and values in its
outcome, as it is part of the larger societal structure. The three case
judgment Kizhvenmani, Ayodhya ( 1986) and Bhanwari Devi that we analysed here
shows how the existing societal values of casteism, patriarchy and communalism
are dominant within the legal institutions, which apparently gets displayed in
the final judgments. Thus trying to comprehend the legal institution and its
outcome, without locating it in a larger political society and its values, will
be a futile exercise, resulting in mere technical analysis of law and its
provisions, devoid of any political space to use law as an effective tool for
fighting against all forms of exploitation.

The author is an associate professor at Department of Political Science and International Relations, College of Arts and Social Sciences, University of Asmara, Eritrea. His email id is svnarayanan15@gmail.com

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How do we see the world? It is neither a gaze, nor is it to invent the predetermined truth, it is to intervene from a position. Our seeing is changing at the same time and without any claim to excavate the unadulterated truth that never existed.
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